U.S. v. Kirk, No. 94-50472

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before POLITZ, Chief Judge, and JONES and PARKER; ROBERT M. PARKER; EDITH H. JONES
• Citation: 70 F.3d 791
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William J. KIRK, Defendant-Appellant.
• Docket Number: No. 94-50472
• Decision Date: 07 November 1995

Page 791

70 F.3d 791 64 USLW 2351 UNITED STATES of America, Plaintiff-Appellee,
v.
William J. KIRK, Defendant-Appellant. No. 94-50472. United States Court of Appeals,
Fifth Circuit. Nov. 7, 1995.

Page 792

E.G. Morris, Morris & Florey, Austin, TX, for appellant.

Mark R. Stelmach, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The appellant, William J. Kirk, entered a conditional guilty plea in the district court to one count of unlawful possession of a machinegun under 18 U.S.C. Sec. 922(o). ¹ On appeal, Kirk challenges the indictment and the district court's sentence calculation. Finding no error, we affirm.

I. FACTS

On September 1, 1988, Kirk offered to sell a machinegun to Donald Mueller. From September 1988 through January 4, 1989, Kirk attempted to sell various unregistered machineguns to Mueller. On January 4, 1989, Kirk agreed to sell Mueller an M-16 machinegun for $1,200.00. Mueller then went with Kirk to a rifle range in Dripping Springs, Texas where they obtained certain parts necessary for a machinegun conversion. Kirk used the parts to convert a semi-automatic EA Company Rifle, .223 caliber, model J-15, to a machinegun. Kirk and Mueller test-fired the converted machinegun with blank ammunition, and the transaction was completed.

On February 12, 1989, Kirk made arrangements with Mueller to sell him an UZI machinegun for $1,100.00 in cash plus a $900.00 commercial welder. On February 21, 1989, at the same rifle range, the cash and welder were exchanged for an Action Arms Limited UZI carbine, Model A, 9 millimeter bearing serial number SA32084, which had been converted to a machinegun by the addition of an UZI machine bolt. Mueller test-fired the UZI in the fully automatic mode. John M. Clark accompanied Mueller on February 21 and witnessed the transaction. Apparently, through Mueller's cooperation, a number of the meetings and conversations between Kirk and Mueller were monitored by the Bureau of Alcohol, Tobacco and Firearms.

Kirk was arrested November 28, 1989. He was charged with firearms violations in eight counts of a ten-count superseding indictment. On the day trial was scheduled, Kirk pled guilty to one count, charging unlawful possession

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of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). Kirk appealed his conviction, arguing that section 5861 had been implicitly repealed by the passage of 18 U.S.C. Sec. 922(o). Based on authority from other circuits supporting Kirk's argument, the parties jointly moved to remand the case to the district court for dismissal of the conviction under Rule 48(a) of the Federal Rules of Criminal Procedure. ²

After the first conviction was set aside, Kirk was charged on December 21, 1993 in a four-count indictment with violations of 18 U.S.C. Sec. 922(o): unlawful possession of a machinegun on January 4, 1989 (Count One); unlawful transfer of a machinegun on January 4, 1989 (Count Two); unlawful possession of a machinegun on February 21, 1989 (Count Three); and unlawful transfer of a machinegun on February 21, 1989 (Count Four). Kirk filed a motion to dismiss the indictment, arguing that section 922(o) was unconstitutional because it exceeded the power of the federal government under the Commerce Clause and because the indictment failed to allege a connection with interstate commerce. Kirk also challenged his prosecution on the basis of the plea agreement entered in the first prosecution and on the basis of double jeopardy. The district court overruled these contentions. Kirk entered a conditional guilty plea to count one of the indictment, preserving the right to appeal the district court's rulings.

Kirk was sentenced on June 24, 1994. In calculating Kirk's sentencing range under the sentencing guidelines, the district court increased the defendant's offense level for obstruction of justice. The district court sentenced Kirk to a term of imprisonment of twelve months and one day, a term of supervised release of three years, a fine of $3,000.00 and a special assessment. The defendant timely filed this appeal.

II. DISCUSSION

A.

Kirk first contends that the district court erred in denying his motion for specific performance of his prior plea agreement. Kirk claims that as part of the first plea agreement in 1991, the government promised that if Kirk were successful on appeal, it would not bring a subsequent prosecution based on the same conduct. Thus, Kirk argues, the subsequent prosecution was barred by that prior agreement.

If a plea agreement exists, and a plea of guilty has been in some way induced by a promise, it is essential to the fairness of the proceeding that the promise be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). This circuit requires the government to strictly comply with the agreements it makes with defendants. United States v. Chagra, 957 F.2d 192, 194 (5th Cir.1992). A court's inquiry regarding whether a particular promise induced a guilty plea does not necessarily end with a reading of the written agreement. Evidence of discussions surrounding the negotiations of the written agreement may establish the existence of a promise. United States v. Williams, 809 F.2d 1072, 1079 (5th Cir.1987), cert. denied, 484 U.S. 896, 108 S.Ct. 228, 98 L.Ed.2d 187 (1987). We will reverse a district court's findings in this regard only if clearly erroneous. Id.

At a hearing in the district court, Kirk testified that at the time he was deciding to plead guilty in 1991, the assistant U.S. attorney told him that he could appeal his conviction based on the constitutionality of the statute, and that if he was successful the government would not bother him any more. However, the AUSA, Gerald Carruth, testified that there was no agreement not to pursue other charges if the conviction did not stand up. In fact, Carruth testified that at no time did the government agree to "give up" if Kirk's appeal was successful.

The written plea agreement presented in January 1991 contained only the agreement to dismiss the other charges at sentencing and the standard language regarding the government's right to proceed with prosecution

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should the defendant withdraw his guilty plea prior to sentencing. The written agreement contained no promise not to re-prosecute in the event Kirk's appeal was successful. The record on appeal also reveals that at the plea hearing held January 23, 1991, after the plea agreement was presented to the district court, the court inquired "Has anyone made any promise to you other than the plea agreement that induced you to plead guilty?" The defendant responded "No, sir."

The district court found, based on the evidence presented, that the defendant entered into the first plea agreement because of the strength of the evidence against him, including recorded conversations, and not because of any promise not to prosecute in case of a successful appeal. In addition, the district court found that the defendant had not established by a preponderance of the evidence that AUSA Carruth made the alleged promise. This finding was based on the testimony of the defendant and the attorneys involved and necessarily depended on an evaluation of credibility by the district court.

"It is not this Court's function to pass on a district court's determination regarding the credibility of witnesses." United States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1412, 131 L.Ed.2d 297 (1995). Given the testimony of the parties, there were two permissible views of the evidence. The district court chose one view based on its ability to weigh the evidence and evaluate the credibility of the witnesses. Under these circumstances, we cannot hold that the district court's findings are clearly erroneous.

B.

The appellant next argues that his prosecution under section 922(o) violated his rights under the Double Jeopardy Clause of the Fifth Amendment because he had been placed in jeopardy for the same conduct in the previous prosecution under 26 U.S.C. Sec. 5861(d). As noted above, the instant prosecution under section 922(o) was not commenced until after the prosecution under 26 U.S.C. Sec. 5861(d) was dismissed because of a perceived infirmity. ³

The Double Jeopardy Clause provides that no person shall "be twice put in jeopardy of life or limb" for the "same offence." U.S. CONST. amend. V.

It has long been settled, however, that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to the conviction.

Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). The exception to this rule, not applicable in this case, is that if the defendant succeeds in having his first conviction set aside on the ground that the evidence presented was insufficient, a re-prosecution is barred because the defendant was entitled to an acquittal at the first trial. Lockhart, 488 U.S. at 39, 109 S.Ct. at 290; Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The first prosecution in the present case was set aside not by a court's determination that there was error, but by agreement of the parties that, according to persuasive authority, the statute under which Kirk was convicted had been implicitly repealed. This is the type of trial error to which the general rule of Lockhart applies. It makes no difference that this Court's review of the first conviction was preempted by motion of the government under Rule 48 of the Federal Rules of Criminal...